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Speak no evil?

Nick Patterson is the editor of Weld: Birmingham's Newspaper. He has previously worked at the Birmingham Post-Herald, UAB, Southern Living, and the Birmingham Museum of Art. He can be contacted at editor@weldbham.com.

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What happens when a newspaper starts asking questions that make people uncomfortable? Sometimes, journalists get strongly worded letters from attorneys.

Weld recently received a letter from an attorney, one Daniel J. Burnick, who, based on the tone of his letter, is less than pleased because of a story this news organization has been working on. The letter, which will be presented to you in its entirety, arises from the questions Weld Local Editor Katherine Webb has been asking about the decision of the Girl Scouts of North-Central Alabama (GSNCA) to close Camp Coleman, a 140-acre camp founded in 1925 in Trussville. GSNCA serves a 36-county region, representing 15,000 girls in 1,100 troops.

For several weeks, Webb has been looking into allegations being made by a group called the Friends of Camp Coleman that there is something wrong involved in the closing of the camp and raising questions about the Girl Scout council. The GSNCA has continually denied any wrongdoing concerning Camp Coleman, and as countercharges have flown back, the Friends of Camp Coleman have also disputed any claims of improper behavior on their part.

Closing the camp has become the subject of litigation filed against the GSNCA by Sarah Edwards. Although she is filing as an individual, Edwards is president of the FoCC, which was founded in 2012 with the stated goal of preserving Camp Coleman. Patricia “Trish” Coghlan is the chief executive officer of the GSNCA.

Webb’s goal has been to produce a story about the events arising from the controversy between the FoCC and the GSNCA and the decisions that will ultimately determine the fate of the camp and the future use of the land. Her story has not yet appeared in print or online. In the process of asking questions and giving all parties ample opportunities to have their viewpoints included, Webb sent a query to Burnick.

Burnick responded with an email sent to Webb and Weld Publisher Mark Kelly last Thursday.

Burnick’s email purports to respond to Webb’s questions with firm answers and declaring that “this is the truth.” But nestled among the many points of Burnick’s letter is the suggestion that Weld, acting as a tool of the Friends of Camp Coleman, intends to treat the GSNCA unfairly. He accuses Webb of “furthering Ms. Edwards [sic] mission of wrongfully attacking GSNCA.” The management of Weld categorically denies any such intent.

Burnick also strongly hints that if he doesn’t like what Weld publishes, he will recommend legal action. His exact words: “Should any false and/or defamatory statements be published by Weld, or any other media outlet, I am obligated to advise GSNCA of their legal rights and remedies.” Burnick includes a warning that Weld should be ready to wind up in court.

Since Weld is not in the business of publishing false and defamatory statements, some might interpret Burnick’s letter as a threat, or, at the very least, an attempt to intimidate Weld “or any other media outlet” into dropping its investigation. It wouldn’t be the first time journalists have been threatened by powerful organizations or their representatives for daring to raise questions.

In fact, it’s remarkably common, according to Larry Kilman, the deputy chief executive officer and executive director for communications and public affairs at the World Association of Newspapers and News Publishers (WAN-IFRA). Kilman’s organization is a global association representing 18,000 newspapers, 15,000 online sites and 3,000 companies in more than 120 countries.

Here’s what Kilman had to say about efforts to stifle the press by threats of legal action:

“It’s a practice we see more often in repressive regimes than in the US, where asking questions and investigating possible wrongdoing are central to a newspaper’s role in democratic society. There’s nothing wrong in reminding you to be careful, of course, but threatening a newspaper with legal action for simply carrying out its work is chilling, particularly when the threatened lawsuit would likely have little chance of succeeding.

“Win or lose, it’s really the cost of defending such a suit that can lead a media company to self-censor or even reconsider whether an investigation is worth the risk. And it’s particularly troubling when it’s aimed at a small media company. You’d have to wonder if such a tactic would be used if the paper was The New York Times.”

Woodrow Hartzog, assistant professor at Samford University’s Cumberland School of Law, said that members of the news media have frequently found themselves facing legal threats, both actual and implied, simply for asking questions.

“The press has always faced challenges from both government and private entities who have attempted to restrain the publication of information that is adverse to their interests,” said Hartzog, who is also an affiliate scholar at the Center for Internet & Society at Stanford Law School. “With respect to private parties, lawsuits brought to interfere with the publication of a story in the public interest even have a name – SLAPP suits (Strategic Lawsuits Against Public Participation). Many states have Anti-SLAPP statutes, though Alabama is not one of them.

“Even without an Anti-SLAPP statute,” Hartzog said, “the First Amendment provides robust protection for the press against lawsuits claiming harm from the publication of information.”

Neither Hartzog nor Kilman were given more than broad, general information about this set of circumstances. Their comments are included in this story to provide context.

Is Burnick’s letter an attempt to intimidate Weld because of the questions being raised? Or is the Girl Scout council lawyer really just trying to be helpful? You decide.

Burnick’s letter reads as follows:

Katherine:

In your email to me, you state that “Weld is interested in the truth of these issues.” Here is the truth:

1. On April 18, 2012, in an email Sarah Edwards sent to Trish Coghlan, Ms. Edwards stated that “When I was Council President, I was asked if I would ever sell Camp Coleman and I answered that IF THE CHOICE WAS TO HAVE PROGRAM FOR THE GIRLS OR HAVE A CAMP, I WOULD HAVE TO HAVE PROGRAM. I STILL FIND THAT TRUE.” I have attached a copy of this email for your review. The sale of the 4 camps pursuant to the Three-Phase Property Plan will provide much needed funding to GSNCA to provide the girls with the best programming possible, while still operating 2 camps that remain available for all the girls to use.

2. There were numerous opportunities for all members, both girls and adults, to express their opinions on the camping situation. There were town hall meetings, email and telephone surveys, social media notifications and newsletters that were sent out to members before and after the three phase property plan was voted on by the Board. While the number of members participating was disappointing, the responses were evaluated by GSNCA and the committees involved in the process.

3. With budgetary restraints that have impacted numerous organizations over the past 5 years, profit and non-profit alike, GSNCA has had to make many difficult decisions. When making difficult decisions, it is impossible to please all the members of GSNCA. When the Councils merged, it was understood that 6 camps were too many, and at some point in time, some would have to be closed. The Board, the Property Assessment Committee and the Property Committee spent a great deal of time and effort evaluating all the property owned by GSNCA, and ultimately approved the Three-Phase property plan in the best interest of GSNCA, the girls, and its adult members. It should be noted that Councils around the country are facing the same problems as GSNCA, and many are deciding to close camps. This is not an isolated situation. (See Annotation 1.)

4. Friends of Camp Coleman are interested in only one thing: keeping Camp Coleman open. This is evidenced by various statements made on their web page. GSNCA Is obligated to serve all 15,000+ girl members and the 5,000+ adult members. The four camps that have been or will be closed have had declining attendance over the years, and only a small percentage of the membership used these 4 camps. For example, in 2012, in unduplicated numbers, only 2.8% of the 15,000+ girl scouts attended the four camps. Over the past 3 years, the 6 camps operated by GSNCA have incurred operating losses of approximately $3,000,000.00, while investing almost $400,000 for capital repairs and improvements. GSNCA cannot continue to sustain such large losses and invest large amounts of cash while fulfilling its mission to provide appropriate programming for the girls in a fiscally responsible manner.

5. FOCC claims to be a 501(C)(3) non-profit tax exempt organization. My research did not find any record with the IRS of their non-profit tax exempt status. Have you asked them to provide you with the IRS letter recognizing FOCC as a tax exempt organization? (See Annotation 2.)

6. Their website also states that: “These “friends” incorporated on July 16, 2012 to form the Friends of Camp Coleman – a 501c3 non-profit organization committed not only to saving Camp Coleman but also to establish an Endowment Fund to ensure that Girl Scouts will be able to call Camp Coleman their own for another 87 years.” FOCC did not and does not have any type of agreement with GSNCA to raise money on behalf of Camp Coleman or GSNCA. Have you asked FOCC how much they have collected for their endowment? Since GSNCA is closing Camp Coleman, what will happen to this money? Have you asked them why they did not provide a written proposal to GSNCA as requested by GSNCA, only responding that their attorney did not want them to?

7. FOCC represents a very small minority of individuals who only care about keeping Camp Coleman open. According to their website, only 421 people have signed their on-line petition to Save Camp Coleman. A number of these names appear to be duplicated, and a number of names appear to be family members. Over 20,000 members of GSNCA have NOT signed the petition, notwithstanding their campaign that has been carried out for almost a year.

8. Prior to the filing of the lawsuit by Ms. Edwards, numerous documents were made available to several members who requested them, including Ms. Edwards. They paid $.50 a page. The repeated requests by numerous people interrupted the day to day operations of GSNCA, although not in a very serious way. These requests continued, including at least one by Ms. Edwards, after the lawsuit was filed.

9. After the lawsuit was filed and GSNCA was ordered to produce the documents requested, GSNCA was legally required to undergo an extensive search to locate and make available the voluminous documents requested by Ms. Edwards. Some of the information requested could be considered “readily available”, such as Board minutes, annual reports and audited financial statements. However, much of the information requested was never “kept readily available” as stated in your email. The Request for Production seeks a great deal of information that was not readily available, such as “A true and correct copy of all correspondence, emails, memorandum, electronic memorandum, or interoffice memoranda between or among Board members, Council staff, or the membership of the Council regarding the three phase property plan”, or documents that are 5 years old. GSNCAs’ extensive search for documents to respond to Ms. Edwards’ requests resulted in almost 11,000 pages being identified and copied. If you check with other lawyers in town, responding to requests for production involving Electronically Stored Information (ESI) is very time consuming and expensive. The 339 hours spent by GSNCA staff was required to locate as many documents as possible that were responsive to the request for production of documents.

10. In light of the fact that this is a lawsuit filed under Rule 27 of the Alabama Rules of Civil Procedure, I believe that GSNCA is entitled to be reimbursed for the time spent locating the documents. $50.00 an hour is not an unusual amount to claim for the time spent by the staff. The 339 hours was also time spent by the staff that was not dedicated to the mission of GSNCA: serving the girls. I am not aware of any company that charges $.10/page for copying in a situation such as this. Charges from $.25 to $1.00 page are often incurred in the litigation process. The $.50/page request is an amount that I believe is reasonable. Again, to require a non-profit organization, in responding to a lawsuit such as this, to incur the expense of copying almost 11,000 pages is not the norm: the requesting party should be responsible for the costs. As stated above, the individuals who requested documents prior to the lawsuit being filed, were charged $.50/page, and paid that amount. This included Ms. Edwards, so she should not have been surprised when GSNCA requested reimbursement in the amount of $.50/page for the almost 11,000 pages requested by her.

11. GSNCA filed a formal response with the court on February 6, 2013. Since that time, I have not received any response from Ms. Edwards’ attorneys about the requested protective order, reimbursement for time spent or for copying expenses. GSNCA also offered to enter into mediation in an attempt to resolve this dispute. Again, no response was ever received from the attorneys representing Ms. Edwards. (See Annotation 3.)

12. Instead, Ms. Edwards, and others, have moved outside of the judicial process and have contacted a number of media sources, including Weld. I would question the motivation of those involved when a lawsuit is filed, 11,000 documents are offered to be produced, the response is total silence, and an attempt is made to take their fight to the media. There is potential for a great deal of harm to GSNCA should false and/or defamatory statements be published by Weld or any other news outlet. The harm could include, but not be limited to, damage to the reputation of GSNCA, loss of volunteers, and financial loss. Should any false and/or defamatory statements be published by Weld, or any other media outlet, I am obligated to advise GSNCA of their legal rights and remedies.

13. In your email to me, you state that “Many serious claims have been made against the GSNCA council and the ways in which the council handled the decision making process.” Can you advise me as to what these “serious claims” are?

14. You also state that “The stories are varied; yet, often point to one key element—the Council is withholding information.” GSNCA was SUED by Sarah Edwards seeking information. GSNCA responded by locating and offering to produce almost 11,000 pages of documents upon reimbursement for time spent gathering the information SHE REQUESTED, and reimbursement for copying the documents SHE REQUESTED. No response was ever received from her attorneys. How can you reasonably conclude that “the Council is withholding information”?

15. In light of the allegations made in Ms. Edwards’ lawsuit that individual Board members may have violated their fiduciary duty, and that GSNCA may have violated Alabama Non-Profit law, GSNCA must take the appropriate steps to protect the legal interests of the Council and the Board members in light of the fact that they have done nothing wrong. The appropriate response once a lawsuit is filed is to respond in court, which GSNCA has done. The fact that Ms. Edwards, those who may be associated with her and/or FOCC are seeking the same information outside of the lawsuit is nothing more than an attempt to harass and intimidate GSNCA, which diverts time and resources away from serving the girls. With the exception of a small number of documents that are legally privileged or protected, NOTHING IS BEING WITHHELD. Since February 6, the documents requested by Ms. Edwards have been available upon reimbursement of the time and expenses GSNCA was forced to incur as a result of her lawsuit.

16. You also state that “The council has requested I cease questioning and refer to their website hence forth.” I am aware that various staff members and board members have responded to numerous questions asked by you. Every time they responded, you followed up with additional questions. In light of the litigation filed by Ms. Edwards, GSNCA has a number of concerns, including, but not limited to, the following: a) It appears that any information provided by GSNCA to you was being relayed to Ms. Edwards and/or others you are communicating with; b) there is an apparent shift in strategy by Ms. Edwards in abandoning her lawsuit and attempting to negatively influence the public perception of GSNCA. GSNCA believes that it has truthfully responded to your questions and does not seek to assist you in furthering Ms. Edwards mission of wrongfully attacking GSNCA; and c) GSNCA has spent a great deal of time and effort in responding to the lawsuit filed by Ms. Edwards, and a great deal of time and effort responding to your questions. GSNCA has limited resources, and needs to focus on the girls and moving GSNCA forward. (See Annotation 4.)

You stated that you are seeking the truth. This is the truth. The information provided to you by Ms. Edwards and others is self-serving and incomplete. She filed the lawsuit, and seemingly abandoned it. Now, she, with others, is attempting to use you, Weld, and other news outlets to portray GSNCA in a false and/or defamatory light. GSNCA cannot and will not tolerate this. They may be placing you in a position where you will need to be deposed should the litigation continue. Please maintain and preserve any notes, emails, correspondence, photographs, videotapes, documents provided to you, tape recordings, or other documents provided to you in relation to this story as they may be needed in the future.

I trust that this information is helpful for your story.

Daniel J. Burnick

Attorney at Law

Publisher AlabamaEmploymentLawBlog.com

The purpose of this annotation is not to accept or refute any claims by Burnick against the Friends of Camp Coleman. All sides of that dispute will be explored in next week’s story. The purpose of this annotation is to clarify Weld’s intent regarding this investigation.

1) Such opposition is not unique either. A grassroots group in Cleveland, Ohio, petitioned their council when camp property was announced to go on the market. The grassroots organization called for a vote that would require two-thirds approval by membership for the sale of property. A judge, who initially found in favor of the Girl Scouts council, is reviewing an appeal on the case. Full details here.

2) FoCC has taken all necessary steps to be recognized as 501(C)(3) — currently granted incorporation from Secretary of State Beth Chapman.

The FoCC’s letter of incorporation regarding nonprofit status, signed by Alabama Secretary of State Beth Chapman.

3) Sarah Edward’s attorney, William Bradford, says, “The ‘response’ that we received made it clear that we could not review any documents until the $22,422.50 was paid. In reality, GSNCA’s response was essential that the documents would be made available once the money was paid. It has to be remembered that Ms. Edwards is an individual being asked to pay $22,422.50 to look at documents by a nonprofit organization which had 6.5 million dollars of revenue in 2011.

“Our position is that as a member of GSNCA, Ms. Edwards has a statutory right to review the documents, period; without payment. Based on the letter from GSNCA it did not seem that there was much to discuss, given their position. Moreover, it is difficult to have a meaningful discussion when the documents forming the factual basis of the discussion are being withheld. To that end, we are seeking the Court’s intervention and asking that GSNCA be ordered to allow us to review the documents without prepayment.”

4) Weld has 27 on-the-record interviews with representatives of GSNCA, FoCC and outside organizations, public officials, volunteers and members of the Girl Scouts. Weld has thoroughly reviewed — at the request of both GSNCA and FoCC — the property assessment report and legal documentation available on GSNCA’s website. All of the work was done with the intent of presenting the truth of the situation, as is the role of newspapers, protected by the First Amendment of the Constitution of the United States. Our approach is to present a comprehensive story that is a fair representation of the views of all involved parties.

Next week: The story at Camp Coleman.

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[…] Scouts of North-Central Alabama (GSNCA) from Weld for Birmingham by local editor Katherine Webb has drawn a stern warning from the lawyer representing GSNCA, the newspaper reported today in a column by editor Nick […]